Press Releases

The recent Department of Justice and Securities and Exchange Commission guidance1 on the Foreign Corrupt Practices Act does not break new ground, but it does offer internal and external counsel, as well as ethics and compliance professionals, a user-friendly guide to the agencies’ priorities.

"This is a case first impression and one of signal importance in our administration of the Federal securities acts." With those words just over fifty years ago in Cady, Roberts, a Securities and Exchange Commission ("SEC") adminitrative proceeding, Chariman William L. Cary began the first insider trading decision ever issued under the federal securities laws.

The traditional targets of the DOJ’s and SEC’s anti-corruption efforts have been companies in industries with a high degree of government interaction, such as the defense, healthcare, and extractive industries. Recent trends, however, indicate that the government has been broadening the scope of its FCPA enforcement scrutiny.

For generations, investors had clear choices when seeking assistance in investing their money. Investment advisers provided financial advice, either by exercising discretionary trading authority or providing financial planning, in exchange for a fee, typically based on the asset value of the account. Brokerdealers provided execution services for clients who wished to trade, occasionally made recommendations to customers on which they could choose to act or not act, and were compensated by commissions generated on transactions in the account. Investment advisers were regulated by the Investment Advisers Act of 1940 and had clear fiduciary duties. Brokers under the Financial Industry Regulatory Authority’s (“FINRA”) regulatory scheme did not have generalized fiduciary duties to their customers, but when making recommendations to customers, they had to act “fairly” and have a “reasonable basis” for making such recommendations.